Mr. Friedman: Mr. Chief Justice Rehnquist, and may it please the Court:

Alabama's capital sentencing scheme provides fo two decision-makers to determine sentence, a jury and a judge.

The legislature and the courts of Alabama have always said that the jury has a sentencing role to play.

The Alabama code addresses both jury and judge with provisions on how to determine sentence.

The legislature intended that

"juries play a major role in capital cases in Alabama. "

as the Alabama supreme court noted in its landmark decision in Beck v. State.

The court confirmed in Ex Parte Williams that tha role cannot count for nothing in Alabama's system, where the judge is the ultimate sentencing authority, following the jury's completion of its significant part.

In Johnson v. State, the Court of Criminal Appeals said that an Alabama capital jury must be death qualified precisely because it plays a

"key role in the sentencing process. "

and despite the State's suggestion to the contrary in its brief, a trial court's rejection of a jury's advisory verdict is always understood and referred to in the case law as an override of that verdict.

I mean, because no one claimed the jury has final authority in the event the judge didn't act.

Mr. Friedman: That's correct, the jury does not have final authority--

Unknown Speaker: So it's not like Florida.

Mr. Friedman: --It is like Florida.

The Alabama supreme court has said consistently, actually, that Alabama is virtually identical to Florida in that it is a dual sentencing State.

It does not have... the jury does not have final sentencing authority, but it is a constituent sentencer, as this Court has recognized in Espinosa that in Florida the jury is a constituent sentencer and Alabama has said that our system is virtually identical to that.

And the Alabama courts have said repeatedly that the jury verdict and the capital sentencing jury has a very significant role to play, and that can be discerned from both the statutory provisions and the case law in Alabama.

The statutory provisions are addressed in 13A-5-46, for example, to the capital sentencing jury, on how it is to determine sentence, and that includes the weighing and consideration of aggravation in mitigation, the returning of a verdict only under certain circumstances... that is, when seven, at least 7 jurors vote that death is... life is the appropriate punishment, or 10 that death is the appropriate punishment, and if those numbers aren't reached, a new panel must be empaneled because that verdict would not have been reached by the first sentencer.

The State's attempt in this case to transform the life without parole recommendation of this constituent sentencer into a fact in mitigation is inconsistent, thus, with the history and the logic of Alabama's capital sentencing scheme.

Unknown Speaker: On the facts of this case, can you tell me, for the four defendants were there four different juries?

Mr. Friedman: That's correct.

Well, actually, one of the defendants, the codefendant in this case, pleaded guilty in exchange for his testimony.

Unknown Speaker: All right.

In the jury... was it Sockwell--

Mr. Friedman: Sockwell.

Unknown Speaker: --was the trigger man?

That jury also recommended life?

Mr. Friedman: That's correct.

Unknown Speaker: What was the division there, was it 7 to 5 as well?

Mr. Friedman: Yes, it was.

Unknown Speaker: But a different jury than Harris' jury?

Mr. Friedman: That's correct.

Unknown Speaker: Thank you.

Mr. Friedman: That's correct, and it's impossible to tell, based on what this judge did, why this jury was rejected, the jury's verdict was rejected in Mrs. Harris' case.

No explanation was given in Mrs. Harris' case of why the jury's life without parole verdict was not--

Unknown Speaker: I take it that's consistent with Alabama law.

The Alabama courts have never required an explanation from the judge as to why he rejected the jury's verdict.

Mr. Friedman: --And that's... that's exactly right, and that's why Mrs. Harris is here today, because what Alabama law has done is, in essence, created a dual sentencing system, but done nothing to regulate the relationship between the sentencers.

Unknown Speaker: Well, you call it a dual sentencing system, but the statute says, while the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court.

Here, the trial judge recited that he had considered the jury's recommendation.

Surely the statute doesn't require any more.

Mr. Friedman: The statute does not require any more, Chief Justice Rehnquist.

Mr. Friedman: Because this Court's jurisprudence under the Eighth Amendment has always said that procedures by which a death penalty is imposed must be reliable.

In Godfrey v. Georgia, for example, this Court said that a State must tailor and apply its law in a manner that avoids arbitrariness.

Unknown Speaker: If a jury were out of this picture entirely and you just had a judge with the standards that the judge has given, there would be no constitutional infirmity.

Mr. Friedman: That's correct, Justice Ginsburg.

In Alabama, it is pretty consistent with Federal law to withdraw the jury from this process.

It's also pretty consistent with Federal law to withdraw the judge from this process.

What it cannot do is have two sentencers, both of whom are governed by the Eighth Amendment, and have no connection whatsoever between them.

Unknown Speaker: Well, isn't--

--What is the constitutional requirement?

You have said that the particular standard that Florida uses that's been called the Tedder standard, that that's not constitutionally required, but I don't think you identified what is the constitutional minimum.

Mr. Friedman: That's right.

The Tedder standard is not itself constitutionally required, but this Court has recognized it is constitutionally acceptable.

There are a number of valid standards that Alabama could apply.

Unknown Speaker: What's the least?

Mr. Friedman: The least standard might be that the jury's verdict is rejected if there's some reasonable basis for rejecting that, or if no reasonable person could differ that life was not the appropriate punishment, or another minimal basis could be that the jury's verdict was itself considered a mitigating factor, as some of the courts have done in Alabama, because they literally do not know how to factor this jury verdict into the sentencing consideration.

Unknown Speaker: Why... what about just disagreeing with the jury?

I mean, I could understand the need for a reasoned rejection of the jury verdict if the jury verdict itself were a reasoned verdict.

Was it?

Did the jury give reasons why it thought that the death sentence should not be imposed?

Mr. Friedman: The jury is not required under Alabama law to specify aggravation in mitigation, though there is no reason in this case--

Unknown Speaker: So it just comes in and says, we recommend life?

What could the judge possibly say to explain his disagreement except to say, I disagree?

Not knowing the reasons the jury said that, how can you explain the reason for your rejecting?

His reason is, I see it differently.

Mr. Friedman: --Justice Scalia, I disagree would be, I weigh the aggravation differently against the mitigation to come up with a different... a different response.

Alabama law requires something else.

Unknown Speaker: Doesn't he say that implicitly simply by saying, in my view the death penalty is the right one?

Mr. Friedman: But Alabama law requires the judge to do something else.

It's not just enough to say, aggravation outweighs mitigation, because the statute requires something else.

The statute requires that somehow that jury verdict be factored into the calculus, be factored into the process.

Unknown Speaker: No, it doesn't require... it requires that he consider it.

Mr. Friedman: And our contention is--

Unknown Speaker: And he did.

Did he consider it?

Mr. Friedman: --He... this trial judge did say that he considered the verdict.

Unknown Speaker: And he disagreed with it, evidently.

Mr. Friedman: He clearly must have disagreed with it.

Unknown Speaker: What more could be possibly have said--

Mr. Friedman: Because--

Unknown Speaker: --to show why he disagreed with it, since he didn't know the basis on which it was... itself was made?

Mr. Friedman: --He said nothing about what may have been improper about this verdict, and when there are two sentencers, which Alabama has created, I consider it simply not constitutionally sufficient.

If this Court... if a trial judge had said with regard to aggravation and mitigation, I did what I was supposed to do, but didn't say what that was, that wouldn't be sufficient, and this Court has recognized in other contexts that simply saying, I did something, such as, I found this case to be heinous, atrocious, and cruel, is not enough when that doesn't provide sufficient guidance to the sentencer to make a sentencing decision, and that's what we have here.

Unknown Speaker: Ms. Friedman--

--But the role that the jury has here seems to be a familiar one, and this is not unknown.

It is like the advisory jury in equity.

If you look at Federal Rule 39(c), you'll see an advisory jury, that it's not binding on the judge, that he will consider or she will consider for the value he or she thinks it has, so why isn't... and that's certainly compatible with the Constitution.

Why should this be regarded differently?

Mr. Friedman: Because the Eighth Amendment requires some guided discretion of the sentencer, and here we have... a second sentencer has to evaluate the judgment of the first sentencer and has absolutely no idea how to take that into consideration, which allows for arbitrariness, and that's evidenced by--

Unknown Speaker: No more arbitrary than if the judge were alone during the sentence.

Mr. Friedman: --And if the judge were alone during the sentence, Justice Ginsburg, we wouldn't have an issue here.

There would not be a problem of a disconnection when there is a disagreement between the sentencers, and Alabama is free to set up that system if it wishes.

This Court said in Johnson v. Mississippi that there is no perfect procedure by which a State can set up its capital sentencing scheme, but it cannot set up a scheme that's premised in any way on caprice, and that's what we have here, because two sentencers are required.

The jury verdict... the jury in this case is very much like a penalty phase jury in other States where there is no additional sentencer, where the judge is not involved.

It is death-qualified, it's got to be properly instructed, it has to hear only admissible evidence and then return a verdict only under certain circumstances, and as I said, the code provision is addressed to the jury.

Unknown Speaker: Is your client somehow worse off because a jury made a recommendation of life?

Mr. Friedman: She's worse off under the scheme that... yes, that Alabama has created.

Unknown Speaker: I.e., worse off than if there had been no jury at all?

Mr. Friedman: But we cannot look, Justice Kennedy, at the scheme as if there is no jury.

Unknown Speaker: Well, if we look at just that, because Justice Ginsburg was asking you what if there were just a judge sitting, and so my question is, is your client really worse off than if there were no jury at all?

Here's a jury who tells a judge, 7 to 5, we think it should be life.

How is she worse off than if there'd been no jury at all?

Mr. Friedman: I think she would not be worse off if we just had a jury involved in sentencing in Alabama or if we just had--

Unknown Speaker: No, that's not my question.

Mr. Friedman: --I'm sorry.

Unknown Speaker: My question is, why is she worse off under the present system?

Mr. Friedman: Because she was sentenced to death under a process that was unreliable.

Alabama law requires that that jury be involved in the sentencing process.

Unknown Speaker: Why is it less reliable if a judge has an opinion to take into account?

Mr. Friedman: Because... precisely because the advisory verdict of an Alabama jury is not simply an opinion.

An Alabama law has never treated it as simply an opinion, but it has treated it as--

Unknown Speaker: I assume that that's what you're complaining about.

Let's say it was just an opinion.

Is your client any worse off?

Mr. Friedman: --If it was just an opinion, no.

If it was just a--

Unknown Speaker: Well then, how is she any worse off under this procedure, where it's even more than an opinion?

It seems to me that that's even more protection for her.

Mr. Friedman: --Because it's more of an opinion, Justice Kennedy... because it's more than an opinion.

It is the advisory verdict of a sentencer, and you asked in this case, is she worse off?

We have no idea why the judge rejected the advisory verdict of life without parole in this case, on which there was considerable basis for returning that verdict.

This jury heard evidence that Mrs. Harris was a mother of seven, that she worked three jobs while she was raising her family, that she had no prior criminal history whatsoever, and that this... the killing in this case occurred after a history of domestic strife between husband and wife, including incidents in which her husband had hit Mrs. Harris in the head, threatened her with a gun, and where there had been a separation and an application for divorce.

Under those circumstances, the jury was required under Alabama law to return a considered verdict, an advisory verdict of what the appropriate punishment was, and Alabama law requires, the statute requires that the judge do more here than simply consider aggravation and mitigation, and this Court has recognized in cases such as Espinosa v. Florida, or Gardner v. Florida, that when the Alabama... excuse me, when a trial judge must do more than simply consider aggravation and mitigation, there is another issue that this Court must take into account which can lead to an arbitrary sentence of death, which is what happened in this case, which is why she is worse off.

When one looks at the sentencing orders returned in the cases in Alabama, it is impossible to have any kind of consistent formulation as to how the jury was made part of the process.

Unknown Speaker: Well, is that a different argument?

I mean, you've been arguing about the unreliability of what happened in this case and can happen in other cases, but are you also making the argument that in fact different trial judges are applying different standards in evaluating what the jury's verdict actually is?

Not merely that some happen to give great weight in a given case and others happen to give little weight, but that there are different legal standards that they are bringing to bear in deciding what to do with a jury verdict?

Is that also your argument?

Mr. Friedman: Certainly, Justice Souter.

Unknown Speaker: Well, I went back, and here's where I want you to help me out.

I went back through, admittedly somewhat quickly this morning, but I went back through the examples that you gave in your brief, and I found examples in which some trial judges are saying that they consider the jury's recommendation as a mitigating circumstance.

I found some in which they simply don't say that... they don't say that they don't consider it a mitigating circumstance.

They just don't describe it... and I found a third category in which judges, whether they call it a mitigating circumstance or not, in fact have said that they gave great weight to the jury verdict.

Do those three examples ground an inference that there are different legal standards being used in the importance given to the verdict as distinct from simply different treatments, depending on what in individual cases judges happen to think the value of the jury recommendation is?

Is there a... as they say today, is there a systemic difference based on legal standards, or are there just varieties of applications which vary according to the evidence?

Mr. Friedman: I think there are differing legal standards.

I think there are some judges who say--

Unknown Speaker: Well, can you infer that from the examples that I gave, or am I missing something?

Is there something more in here?

Mr. Friedman: --I think there are other cases which are also useful to look at.

For example, there are some judges who say, I reject the jury's life-without-parole verdict, because there's a reasonable basis for doing that, and there are other judges who say, I reject the jury's verdict even though there is a reasonable basis for the jury's verdict.

They're approaching it in a completely different way, and they also take it into account in a different way.

Some do treat it as a mitigating factor, as Your Honor suggested.

Some treat it in a way that we just don't even know.

Unknown Speaker: Yes, but it doesn't follow from the latter instance that they're not giving it the same weight they would give it if they called it a mitigating circumstance.

I don't think we can infer much from that.

But you say there are examples in which some judges say, I follow it because it is reasonable, implying... because there's a reasonable basis for it, implying that there would be a sort of heightened standard of persuasion to reject it, whereas others say, although it is reasonable I reject it without indicating that there is any heightened standard for rejection, is that correct?

Mr. Friedman: That's exactly right.

Unknown Speaker: Can you give me... and you don't necessarily have to do it this moment, but you could do it after argument.

Could you give me two cases illustrating those two approaches?

Mr. Friedman: Yes.

The first... except for the first question that you mentioned was, I follow it.

In the cases we have here, where they haven't followed it, but I can give you examples of where those... there's a different heightened standard, that's exactly right, and if Mrs. Harris was sentenced according to one of those standards, she might come out with one sentence, and if she was sentenced according to a different one of those standards in a different courtroom, she might come out with a different sentence.

Unknown Speaker: So you're really making kind of an equal protection argument based on disparate legal standards, rather than simply a variety of treatment.

Mr. Friedman: I think we're making both of those arguments.

Unknown Speaker: Or you're making a sort of Furman argument that sentencing shouldn't be flukish, and that it's flukish unless all of the judges are treating the jury's recommendation the same way.

Mr. Friedman: It is flukish, Justice Scalia, because Alabama has announced no standard to guide the discretion, that's exactly right.

Unknown Speaker: But the same flukishness occurs whenever you allow a jury or a judge sentencer to take account of mitigating circumstances.

I mean, haven't we gone down that road in Lockett, and isn't, in effect, allowing the judge to have a jury recommendation which may say, you know, in our view you should let this person get off without the death sentence, isn't that simply the addition of an additional mitigating factor which, to be sure, provides for more flukishness, but always to the benefit of the defendant?

Mr. Friedman: Alabama--

Unknown Speaker: And I would say in Lockett that that's not only okay, but it's required, at least... well.

Mr. Friedman: --I think we have a very different system here, Justice Scalia, than just the consideration of aggravation and mitigating factors.

The... calling the jury verdict--

Unknown Speaker: May I ask you if you think the provision of the two sentencers as you describe them actually increases or decreases the likelihood of a death sentence across the uniform... the universe of cases in Alabama?

Unknown Speaker: Well, one might ask, which way does the override more frequently go?

Mr. Friedman: There's no question, 95 percent of the overrides in the State are life-without-parole verdicts of a jury overridden to death.

Unknown Speaker: Whereas if a jury does return a recommendation of death, normally the judge accepts that?

Mr. Friedman: That's absolutely right, Justice Stevens.

Unknown Speaker: Do we have any indication... we don't have any indication of how many times the jury recommends life and the judge leaves it alone, although he might come in, if he were left without the jury, might have imposed a death sentence on his own.

We don't know, and without knowing that, we really can't project, can we, whether this system on the whole favors defendants, or not.

Mr. Friedman: We don't know the answer to that question, but I don't think we can talk about whether the system favors defendants when the system has a built-in arbitrary aspect to it.

Unknown Speaker: What did... the Alabama supreme court, at least it said this statute makes the jury recommendation advisory only, and courts have had experiences with advisory-only juries, but you're saying in the death context an advisory-only jury is inherently arbitrary?

Mr. Friedman: It's... not necessarily.

It's inherently arbitrary under Alabama's system because of what Alabama has created.

It has created a constituent sentencer by all of the case law and all of the provisions that are addressed to that first sentencer.

Certainly the Eighth Amendment requires something different from what may be required in other contexts where some advisory judgment is made, but certainly there are other contexts in the law as well, where a second decisionmaker is asked... is given some rule or regulation for knowing how to take that first decisionmaker's judgment into account.

Unknown Speaker: But with the Fourteenth Amendment, was that just because the Fourteenth Amendment incorporated the Eighth Amendment, or was it in so many words a reliance on the Equal Protection Clause of the Fourteenth Amendment?

Mr. Friedman: We did not rely specifically on the Equal Protection Clause.

Unknown Speaker: Well, but you answered Justice Souter's question, I thought, that you were raising an equal protection claim here.

Mr. Friedman: --Perhaps I understood exactly what question I was being asked.

I think the analysis is the same, that... and really the most direct analysis I think is under the Eighth Amendment arbitrariness jurisprudence of this Court, which is that capital defendants in Alabama are being subjected to an arbitrariness process, and are being treated inconsistently because of that arbitrary process, and that, I think, is the basis for decisionmaking here.

Because Alabama has created a dual sentencing system, that is why the advisory verdict rises to a certain level.

It is true that, as Justice Ginsburg mentioned before, that the statute itself says this advisory verdict is an advisory verdict, it is a recommendation, it isn't binding, but because Alabama has created a second sentencer, that second sentencer is also subject to the Eighth Amendment, and because of that, Alabama has left a piece out of regulating the relationship.

We are not saying that Alabama need make that advisory verdict binding on the trial court, but what it need do is regulate the relationship between the sentencers.

When there is a disagreement between the sentencers, that second sentencer has no idea how to factor it in, and the problem that arises, as can be seen in the different orders of the trial courts, is that without some standard, without some guidance from the Alabama supreme court, they just don't even know what it is.

They don't know how to make it part of the process at all, and therefore some treat it as a mitigating factor, some treat it as a prior judgment, some try and weigh it into the balance, even though they're not treating it as a mitigating factor, and some have a variety of legal standards under which to reject or accept that verdict.

That is an inconsistent and arbitrary process.

Unknown Speaker: If we assume that that's true, then reweighing by the Alabama appellate court is insufficient?

Mr. Friedman: It is insufficient, and for two reasons.

First of all, what the Alabama supreme court does in its discussion of reweighing is never addressed, what the jury's role was in the process, and that's certainly what happened in Mrs. Harris' case, and secondly, Alabama does not reweigh aggravation and mitigation in the way that this Court has understood that term in cases such as Clemons.

It has said specifically in Longhorn v. State that it does not reweigh, and if there are errors below, that sentence is sent back to the trial court for the trial court to impose sentence.

The language of the statute is, we do an independent reweighing, and that language certainly goes to the appellate court's review, which also involves proportionality.

But what it does not do is address part of the process that happened below, which is, because the judge was required to do more than consider aggravation and mitigation, but also to make that jury verdict a part of the process, which is mandated by statute, the appellate review is insufficient because it does not review what actually happened below.

And as to reweighing, the Alabama appellate courts do not do that in the traditional way that this court understands reweighing to take place.

And as I mentioned before, in cases such as Espinosa, or in cases such as Gardner v. Florida, the fact that aggravation is found to outweigh mitigation does not address an arbitrary element in the process, and that's what we have here, with the disconnection between the two sentencers.

This Court has said, in cases going as far back as Gregg, that the Eighth Amendment limits the discretion of the sentencers to minimize the risk of arbitrary action, and what we have in this case is arbitrary action.

Because Alabama has required that two sentencers be involved in this process, it creates, without some connection between them, the risk of arbitrariness because there is no standard for that second sentencer to--

Unknown Speaker: What is your response to the State's argument that the history in Alabama shows that juries were predisposed to acquit white defendants of murdering black victims, or committing crimes against them, the jury's prejudice would tilt the scales in favor of the white defendant, and that they needed the judge override to override life... arbitrary recommendations of life in that category of cases?

They argue that in their brief.

Mr. Friedman: --Certainly the judge can form that... can provide that role if the Alabama supreme court were to announce such a standard as racial prejudice, if there was some evidence or suggestion of racial prejudice, or some other kind of improper action on the part of the jury, but that has not happened.

The Alabama supreme court has announced no such standard, and there is certainly no evidence or suggestion in this case that there's any such impropriety in the forming of the jury verdict here.

It is very critical for this Court to understand that Alabama has created a dual sentencing scheme, and the role of that jury, while it is not binding, while it is advisory, is just like the penalty phase juries in other States in which there is no final, ultimate authority by a judge.

Therefore, because it has--

Unknown Speaker: Excuse me.

Do I understand your answer to Justice Stevens to be that yes, that probably was the object of this scheme, and that it's a legitimate object--

Mr. Friedman: --It could be a legitimate object.

Unknown Speaker: --it simply came down in the wrong way?

Mr. Friedman: It absolutely could be a legitimate object.

Unknown Speaker: So on your... going back to your answer to Justice Ginsburg, in which you thought one standard might be that the judge could not override unless no reasonable jury could have come to the conclusion that the trial jury did, you would make it more difficult for the judge to perform that function.

Unknown Speaker: Well, you... you accept the legitimacy, I guess, of the State's argument that one of the justifications for this scheme is that there tends to be a racial prejudice in favor of white defendants, and I go back to your answer to Justice Ginsburg's first question in which she said, well, what might the standard be?

One of the examples, as I recall, that you gave was the standard that the judge could only override if he found that no reasonable jury could have concluded as this jury did, so what I'm saying is, I guess it follows on your theory that it would be more difficult on your... on a scheme that would be acceptable to you for the judge to perform this kind of function of eliminating the racial bias in the sentencing juries.

Mr. Friedman: I don't think so.

I think there could be a standard, clearly, where if there was--

Unknown Speaker: It's pretty tough to meet a standard that requires a finding that no reasonable jury could have concluded as they did.

That's a high standard.

That's higher than Tedder.

Mr. Friedman: --Well, I use that language because it was language in Tedder.

There's also no evidence that in any case... you know, Hays was one case which a standard that was set out in the Alabama system, were Alabama to announce one, that Hays could certainly meet.

There is no evidence that that standard applies to any other case, and particularly Mrs. Harris' case, where there is no evidence of racial prejudice whatsoever on the part of the jury, and there's no reasonable basis evident in this record to determine why that jury's life-without-parole verdict wasn't reasonable, and why it was rejected in this case.

If there are no further questions at this time, I'll reserve the rest of my time for rebuttal.

Unknown Speaker: Very well, Ms. Friedman.

Mr. Friedman: Thank you.

Unknown Speaker: Mr. Bjurberg, we'll hear from you.

Argument of P. David Bjurberg

Mr. Bjurberg: Mr. Chief Justice and may it please the Court:

In Espinosa v. Florida, this Court upheld Florida's capital murderers sentencing scheme which also included a jury override provision.

In doing so, this Court held that the Eighth Amendment does not prevent a State from providing for the so-called dual sentencers.

I take exception to that characterization of what Alabama law truly is on that.

The statute is clear that only the judge is the sentencer in Alabama.

The jury's advisory verdict is just that, it's an advisory recommendation as to perhaps what the final sentence should be.

Espinosa, this Court said that this concept of jury override was constitutional.

Now, the question probably really boils down in this Court is, in FLorida they have the Tedder standard that we've touched on already.

In Alabama, we have a standard announced by our supreme court, the Alabama supreme court, saying that if the whole catalogue of aggravating circumstances outweigh the mitigating circumstances, then the judge is allowed to... to--

Unknown Speaker: Is it correct--

Mr. Bjurberg: --to sentence others differently from--

Unknown Speaker: --Is it correct, as Justice Scalia put it in one of his questions, that your basic position is that if the judge disagrees with the jury that's a sufficient basis for a different result?

Mr. Bjurberg: --Yes, because the judge is the sentencer, and as the sentencer, under the Eighth Amendment... we have to keep in mind we're on the sentencing side of the Eighth Amendment business, which as I understand this Court's precedents allows for discretion, and this Court's been very careful to... any procedure that cuts back that discretion has been found to violate Eddings and Lockett.

Unknown Speaker: Is... do you agree with your opponent's view of what the statistics would show that if a jury recommends death, in 95 percent of the cases the judge will accept the recommendation, whereas if the jury recommends life, there are a substantial number of cases in which the judge will disagree and act independently, impose death?

Mr. Bjurberg: To date I believe we have approximately 26 cases in which the judge has chosen to sentence to death over a life-without-parole recommendation, so I don't... we have... approximate--

Unknown Speaker: Two or three where the judge has set aside the... has imposed a life sentence on the jury?

Mr. Bjurberg: --I cited two or three in the brief.

I didn't cite them all, but I'm not going to argue with the numbers, because I don't think we're here about today.

We rejected the statistical approach to these cases in McClesky.

Unknown Speaker: Well, but could you tell us in that period where you had 26 overrides, how many cases, capital cases were there... potential capital cases were there in which there was no override?

Mr. Bjurberg: No override?

I don't know that number, which was the universe, I think, that Justice Ginsburg was talking about.

To get a true picture of it, you would have to know that number where the judge accepts the life-without-parole recommendation.

Unknown Speaker: A sentence where the jury recommended life and the jury left it alone.

Mr. Bjurberg: Yes.

You'd have to know that number, but I don't think we ought to decide--

Unknown Speaker: Even that number would not be significant unless you knew how often the judge independently might have reached a different conclusion.

I mean, you have to have a case in which he said, well, I would have imposed death, but given the jury's recommendation I'll go along.

Do you know of any such cases?

Mr. Bjurberg: --Well, not to my knowledge, no, and I'm not sure we could ever know that, frankly, so I take great exception with the argument that Alabama does not have a standard, it does.

The aggravating circumstances must outweigh the mitigating circumstances.

Now, that's a different standard before the judge can impose the death sentence, which is entirely consistent with this Court's Eighth Amendment precedent of 1) on the narrowing side, we narrow people who are selected for the death penalty through the use of aggravating circumstances--

Unknown Speaker: Under your system, can the defendant waive the right to have a jury advisory verdict?

Mr. Bjurberg: --Yes, sir, it can.

It can, and if a--

Unknown Speaker: And if a defendant does that, is the judge's standard in imposing the death sentence any different than if there had been an advisory verdict of life, namely that in either event the aggravating must outweigh the litigating?

Mr. Bjurberg: --No.

It's the same standard, and I take exception to the characterization that there is two different legal standards going on here.

There aren't.

One standard consistently applied by all sentencers in Alabama is the aggravating circumstances must outweigh the mitigating--

Unknown Speaker: Suppose it were shown in this case that in County Number 1 a judge says, I accept the advisory verdict unless there's a reasonable grounds for upsetting it.

County Number 2, the judge said, I give very little weight to what the advisory jury says, and similar disparate approaches in various other counties.

Would that be a violation of the Eighth Amendment?

Mr. Bjurberg: --No, it would not, because the sentencer is vested with discretion, and that's the essence of the discretionary process and whatever weight the sentencer wishes to give to these various factors that come in in mitigation.

Unknown Speaker: Isn't there a distinction between the discretion to give weight according to what the evidence warrants in a given case on the one hand, and discretion to consider an aspect of the process as either of no value or of great value?

And I thought the implication of the way Justice Kennedy phrased his question was that the... there was a difference not specific to cases, but a difference which amounted to a different legal standard in the manner in which the judges from county to county were evaluating the fact, we'll call it, of the jury recommendation.

The first kind of discretion to take evidence for what it's worth is undoubted.

The second kind of discretion is different.

Why doesn't that raise a problem either of equal protection, or of arbitrariness, or of arbitrary variation in sentencing?

Mr. Bjurberg: Well I... first of all, I don't think the Fourteenth Amendment equal protection issue is before the Court.

We're up here on an Eighth Amendment--

Unknown Speaker: I grant you it doesn't--

Mr. Bjurberg: --Okay.

Unknown Speaker: --but I'd like to know what you would say.

Mr. Bjurberg: The arbitrariness versus discretion is what we're really at, and if Sentencer A says, I accept the jury's verdict and I'm going to give it some weight, is that a different legal standard than saying, well, I... there's a sliding scale here.

I'm going to give it--

Unknown Speaker: Well, let me make it clearer, then.

Mr. Bjurberg: --Okay.

Unknown Speaker: In County 1, the judge says, I always accept a jury's recommendation unless no reasonable jury could have come to that conclusion.

In County 2, the judge says, I never accept a jury's recommendation as carrying any more weight than in fact I think it's worth, based on the individual circumstances of the case.

Assuming you have that kind of a variation, a) do you have an Eighth Amendment problem, b) if it were before us, would you have an equal protection problem?

Mr. Bjurberg: a) I don't think you have an Eighth Amendment arbitrariness, because what you have is the sentencer giving this particular fact--

Unknown Speaker: No, no, you're changing my hypo.

Either that, or I'm not making my hypo clear.

In the first case, in County A the judge says, my legal standard is, I always accept the recommendation unless I conclude that no reasonable jury could have concluded as this one did.

In County B the judge says, I accept it or reject it, depending on the weight that I think it's worth.

I don't have in effect any override standard at all.

Now, those are two different legal standards.

Is there an Eighth Amendment problem or an equal protection problem?

Mr. Bjurberg: --Perhaps it would be an equal protection problem in that similarly situated defendants are being treated differently.

Unknown Speaker: Why shouldn't we consider the same disparity under our nonarbitrariness jurisprudence under the Eighth Amendment?

Mr. Bjurberg: Because I think what you have to look at is how the process in Alabama works.

I mean, certainly under that hypothetical--

Unknown Speaker: Well, I am.

It's working on different legal standards in different counties.

Mr. Bjurberg: --Well, that's the crux--

Unknown Speaker: Doesn't that infect the validity of the standard, of the process under the Eighth Amendment?

Mr. Bjurberg: --Well, I don't think there are different legal standards.

Each--

Unknown Speaker: No, but my... stick to my hypo.

My hypo does involve two different legal standards.

Eighth Amendment problem?

Mr. Bjurberg: --Yes, it would be.

Unknown Speaker: There's one aspect of this case I wish you would address.

You have taken the position very clearly that the jury is advisory only, the judge gives it whatever credit she thinks it deserves, and yet this very sentencing judge that has full responsibility for the sentence says, as far as guilt or innocence, that the jury came in with a guilty verdict, the court has no reason to go behind the guilty verdict of the jury and will not do so.

So the judge is taking no responsibility at all for the basic conviction, and yet says, as far as the jury is concerned on sentencing, there I'm not going to give it any credit because I find that the aggravating circumstances outweigh the mitigating circumstances.

I can understand the system that says, the judge has to say yes, I agree with the basic conviction and then go on, but here, the judge is saying, I'm going to leave it to the jury on the basic guilt or innocence.

Mr. Bjurberg: Well, I think on the basic guilt or innocence, I think a reasonable interpretation of that is, I find that the evidence is sufficient not to grant a motion for a new trial.

Unknown Speaker: Isn't that Alabama law, that a judge could not set aside a jury verdict on a question of guilt or innocence unless the motion... or unless there were sufficient to grant a motion for a new trial or a judgment of acquittal under a traditional standard?

Mr. Bjurberg: Correct.

I mean, I think that's what he's saying there.

I think in the sentencing portion--

Unknown Speaker: I have no question about that, that he has to leave the jury verdict of guilty alone.

My question is, can he sentence a person to death unless he is also prepared to say, I would have reached the same result that the jury did on guilt?

Mr. Bjurberg: --On guilt--

Unknown Speaker: So I'm speaking about his authority when it comes to sentencing.

Is it rational?

Is it acceptable for a judge to say, without committing myself on the question of guilt or innocence... in other words, to say, I might have found this person innocent, yet I'm going to give him the death sentence?

Mr. Bjurberg: --Yes, I think it is consistent, because when you go to the sentencing hearing, additional information concerning the defendant, his character and... or her character in this case... and involvement in the crime, in otherwise those mitigating and aggravating circumstances come before the sentencer, the judge, and that judge can then weigh those factors back and forth, and that's what this judge did in this case.

Let me just quote on page 6 of the joint appendix--

Unknown Speaker: Well, even without those, I don't suppose it's irrational to say, you know, I'm not sure who did this, but whoever did it deserves the death penalty.

This was a horrible, heinous crime.

I could conceive that, and if the judge says it's really not my... not my role in this State system to decide who did it, but I do know that whoever did it deserves the death penalty, the jury having found that this person did it, this person deserves the death penalty.

There's nothing irrational about that, is there?

Mr. Bjurberg: --No, there isn't, and in fact I think that's what... the judge said in this particular case, quoting from page 6 of the Joint Appendix, while there is evidence that others were involved, and this defendant did not pull the trigger, her participation was such that but for her there probably would have never been a killing.

She planned it, provided the financing, and stood to benefit the most, so I think that was one of the questions brought up below.

Unknown Speaker: I thought that the question here... I'm going back to your statement that there is a standard--

Mr. Bjurberg: Yes.

Unknown Speaker: --because of the mitigating... and I thought that their point is that the Alabama courts have not told their judges a simple thing: judge, consider this a mitigating factor like the other ones and weigh it, as you would any other mitigating factor.

Alternative to, judge, this isn't a mitigating factor.

What this is, just keep in mind that other human beings hearing this evidence have decided differently and give that whatever weight in your mind you feel ought to be given to the fact that 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, or 12 have decided differently from you.

Now, those really are different things.

Judges in the first case do know how to weigh, and judges in the second case, all the time, know how to take into account the fact that other human beings might decide this matter differently.

But the Alabama supreme court, they say, has not told the judges whether to do the one, or the other, or a third, and what they think is appropriate as guidance.

Mr. Bjurberg: And the question then boils down to, does the Eighth Amendment require that guidance--

Unknown Speaker: They're not saying a lot of guidance.

They're saying just that much.

Tell them whether it's another mitigating factor, or tell them whether you go to it with the state of mind that you might have with new trial, directed verdict, any other situation where you know that other jurors... give them that much guidance, is what they're saying, and what I'm... I'm putting their argument, I think, as I understand, or at least one of their arguments, and I want to see what your response is directly.

Mr. Bjurberg: --My response would be that the Alabama supreme court in effect has given that guidance.

Unknown Speaker: Where?

I didn't see that one.

That I didn't see.

I did see that in a case which didn't involve an advisory jury they talked about aggravating and mitigating circumstances, but what's the case where they say, judge, treat this jury recommendation as you would any other mitigating factor?

What's the name of the case where they say that?

Mr. Bjurberg: Now, you won't find that case--

Unknown Speaker: That's what I thought.

Mr. Bjurberg: --because the Alabama supreme court has not determined that the advisory verdict is a mitigating circumstance--

Unknown Speaker: Exactly.

Mr. Bjurberg: --necessarily.

It leaves that to--

Unknown Speaker: Well, is it or isn't it?

Mr. Bjurberg: --It leaves that to the discretion of the sentencer, and we're saying that that dis... that that is the appropriate place to leave that discretion.

Unknown Speaker: But I thought in answer to a series of questions that Justice Souter and I were posing that you said that if there were different prevailing practices in different counties, on just this sort of legal issue, there would be an Eighth Amendment violation.

Mr. Bjurberg: We were hypothesizing different legal standards.

Unknown Speaker: But haven't we come now from the hypothesis to reality, based on your answers to Judge Breyer's questions, Justice Breyer's questions?

Mr. Bjurberg: No, I don't believe we have, in that we're still saying that the sentencer is free to consider this jury's advisory verdict and consider it in a manner which the Eighth Amendment allows that discretion to do so.

Unknown Speaker: That happens all the time, even with a finding of guilt, but I suppose one jury might consider that certain facts justify a particular inference, whereas another jury would conclude that those same facts don't justify another inference, and I suppose you'd have an unjust system if the law required in different counties those divergent findings, but not if a jury vested with discretion happens to reach them, and that's what you say is the situation here, that you may indeed have divergences with different judges, but they are not divergences required by law.

Mr. Bjurberg: Exactly.

Unknown Speaker: Oh, it's exactly, that's interesting, that you find it happens all the time.

Can you think of another example where in fact it isn't clear whether a judge has to consider what a jury says as if it's... the distinction I'm drawing, a mitigating factor, I understand what kind of thing that is, and it's quite a different thing in a judge's mind to ask questions like, how do I treat this advisory jury in admiralty?

How do I treat the opinion of the advisory jury in an equity matter where there's also a matter?

How do I treat it with directed verdict?

How do I treat it on new trial?

How do I treat the fact that other people have decided differently?

That's the kind of discrepancy they're trying to draw a wedge between, and I can't think of any other example in the law where I've seen this.

They're saying, give us that much guidance.

Can you think of any other comparable example?

What's your mind-set, judge?

Is it the mind-set of, another person has decided this differently than you, or is it the mind-set of, there is another mitigating factor out there?

Aren't those different, or are they?

Mr. Bjurberg: I don't... I don't think they're different, in that... now, because the sentencer is allowed this broad, Eighth Amendment discretion to consider that advisory verdict as a mitigating circumstance, and another sentencer might consider that advisory verdict as not arising to that particular level, in other words, but that's inherent in discretion.

As long as there is discretion in the sentencer, you're going to get different treatments of essentially the same thing.

Unknown Speaker: This judge can presumably give greater degrees of discretion to some juries than to others.

He may trust one jury more than another.

Can he take that into account?

Mr. Bjurberg: He can... yes.

I mean, the... yes.

I think he could... he could say that--

Unknown Speaker: Having sat with this jury for a certain amount of time, he may have some views as to how good the jury is.

Mr. Bjurberg: --And he might have some view as to whether or not the life-without-parole recommendation is a compromise verdict.

As in this case--

Unknown Speaker: Any rule would eliminate that degree of discretion, wouldn't it?

I mean, if you said--

Mr. Bjurberg: --Yes, I think it would.

Yes.

I mean, certainly Tedder--

Unknown Speaker: --Well, there are two... again, there are two discretions involved.

Assume... assume, just to keep it simple, a hypothetical case in which two judges are sitting on the same case.

A jury recommendation comes in.

Each judge says, I really do not have very much confidence in this jury, for various reasons.

I don't think the jury's qualifications are all that great, and so if I'm going to weigh this for what it's worth, I'm going to give it much less weight than I would normally give a jury recommendation.

One of those judges, however, says, I believe that that is binding on me unless there is clear and convincing evidence or evidence rising to the demonstration of irrationality that the jury's verdict is wrong.

The other one says, I'm just going to take it for what it's worth.

Those two judges are going to come to different conclusions in following the jury's verdict, are they not?

Mr. Bjurberg: --Yes, I would think so.

Unknown Speaker: And the discretion about how much weight to give the jury's verdict is inherent in the function of weighing evidence, but the discretion of... I'm sorry, I'm putting it badly.

The discretion to determine the sort of value in the abstract of what the jury's recommendations were is sort of inherent in the indiscretion to consider evidence, but the discretion to override or not depends upon a legal standard, and in my hypo, there were two different legal standards, and I take it, as you conceded earlier, that would rise, if there were such a disparity... one county has a judge taking the one position, one county has a different one... that would rise to the level of an Eighth Amendment violation.

Mr. Bjurberg: But in Alabama we don't have two different legal standards.

Unknown Speaker: You don't have any legal standard.

There's no basis for any judge considering himself bound by any legal standard, is there?

Mr. Bjurberg: Except to consider it.

Unknown Speaker: Except to consider it.

Mr. Bjurberg: The statute says, consider this.

Take this into account when you ultimately decide your sentence.

That's--

Unknown Speaker: Then do... is there not at least an obligation for the State to say, you should not, judges, give this a kind of prima facie weight simply by virtue of the fact that it's a jury recommendation?

You should never give it any weight beyond what you think it's worth in the abstract?

Isn't a capital defendant at least entitled to that degree of illumination?

Unknown Speaker: --if the Eighth Amendment doesn't require that, then the door is open for the imposition not merely of different weights to give a verdict, but different standards for judging what the verdict of a given weight is worth, isn't that so?

Mr. Bjurberg: --Well, perhaps the best way I know how to answer--

Unknown Speaker: Isn't that so?

The door is open to that, if the Alabama supreme court gives no guidance at all.

Mr. Bjurberg: --Yes, it would be open to that.

Unknown Speaker: Is there any indication in this case that the sentencing judge gave any prima facie weight beyond just considering it to this jury's verdict?

Mr. Bjurberg: No, there isn't.

Unknown Speaker: In fact, would you--

--Did this judge in another case indicate that he gives great weight to a jury recommendation?

Mr. Bjurberg: In a different case, Coral, or Coral, he did.

Unknown Speaker: Said that was his normal practice?

We don't know whether he gave great weigh to it here.

Mr. Bjurberg: I think it's fair to say he did not give great weight, because in other sentencing recommendations that this particular judge has written, he has said, I give the jury's recommendation great weight, but that was based on the facts of that particular case, and in Coral at least the defendant proffered the jury's life-without-parole recommendation as a mitigating circumstance, and the residual doubt, as in... because of the length of the deliberations of the jury concerning the sentence, as mitigation.

Unknown Speaker: I suppose if a case is tried to a judge instead of to a jury on the guilt phase, a judge... one judge could say, you know, I consider this factor crucial, and another judge could say, I consider this factor of no significance, and that wouldn't render the State's system arbitrary or unconstitutional, would it?

Mr. Bjurberg: No, it wouldn't.

I mean, that's inherent in any fact-finding.

Unknown Speaker: Well, then I'm not sure if--

--It's apparently the conferral of discretion on the fact-finder.

Mr. Bjurberg: Yes, sir.

Unknown Speaker: Well, then I'm not sure why you concede that there would be an Eighth Amendment violation, under our earlier hypothesis.

Mr. Bjurberg: Because as I understood it we were hypothesizing different legal standards to be applied by the sentencer when considering it.

Unknown Speaker: Well, if the law in effect says a judge can do what you say the law... what the judges in reality do, what difference does it make?

Why is there equal protection... or an Eighth Amendment violation in one case and not the other?

Mr. Bjurberg: Well, because if you have... well, the discretion is in the sentencer.

I guess I don't completely follow.

If we're hypothesizing different legal standards, which we don't have in Alabama, then there's this perhaps arbitrariness coming in.

Unknown Speaker: And you do not concede that merely the perception of different legal standards is enough to render it unconstitutional, or do you concede that?

Mr. Bjurberg: No, I don't, absolutely not.

Unknown Speaker: Could you tell me... I just don't... I should know this, and I don't.

Did the petitioner in this case ask the judge to adopt a specific ruling of law which would state or articulate the weight that was going to be given by him to the jury verdict?

Mr. Bjurberg: Not to my remembrance.

Unknown Speaker: If thee were an Eighth Amendment violation of the sort that we've been discussing, would it be cured by the independent reweighing that the appellate court did at page 101 of the transcript?

Mr. Bjurberg: I believe so, and let me clarify that.

The appellate... the intermediate appellate court doesn't reweigh, it independently weighs the aggravating and mitigating circumstances on appeal.

Unknown Speaker: Yes.

It says at page 101 that after an independent weighing, we find that it's the proper sentence.

Mr. Bjurberg: And in Alabama, the appellate courts, both the--

Unknown Speaker: Does the appellate court give any weight at all to the judge's determination of the sentence?

Mr. Bjurberg: --What the appellate court reviews, Justice Stevens, is the death sentence.

Unknown Speaker: I understand, but when it does that review, does it adopt any sort of presumption that the judge was right?

Mr. Bjurberg: No presumption, no, sir.

Unknown Speaker: It just starts from scratch, as though it were the original sentencer?

Mr. Bjurberg: It does, yes.

Unknown Speaker: As if it were the jury?

In other words, it doesn't give the jury recommendation any weight one way or the other, either?

Mr. Bjurberg: It doesn't.

It just starts again, right.

Unknown Speaker: Well, but it place... I take it, it places itself in effect in the position of the jury but not the position of the judge?

Mr. Bjurberg: No, I think it--

Unknown Speaker: That can't be right, because it considers the presentence report, doesn't it?

Mr. Bjurberg: --Yes.

Between the two, the appellate court puts itself in the position of the judge, because at that point it has the presentence report and these other--

Unknown Speaker: But does the appellate... the appellate court then considers the jury verdict in some sense.

Mr. Bjurberg: --In the sense... yes, in the sense that it's reviewing the death sentence, the imposition of the death sentence, and if they find--

Unknown Speaker: But it does not articulate the standard it uses to determine whether any particular prima facie weight is to be given to the jury recommendation, or whether no prima facie weight should be given.

Mr. Bjurberg: --Right, it did not.

Unknown Speaker: Does it just merely say in our opinion the aggravating circumstances outweigh the mitigating, ergo the death sentence is proper?

Mr. Bjurberg: No.

It's a fairly elaborate scheme of appellate review.

First, they have to determine whether or not there was any error in the sentencing proceeding.

Unknown Speaker: No, assuming no procedural error, but just on the ultimate determination, is it just a totally de novo determination that in the judgment of the appellate tribunal the aggravating outweigh mitigating and that's the end of it?

Mr. Bjurberg: Yes.

Unknown Speaker: What does it do with the presentence report?

Doesn't it consider that?

Mr. Bjurberg: It... yes, it would consider that in this process of the appellate weighing of the aggravating and mitigating circumstances.

Unknown Speaker: Okay, but that's more than just reweighing.

In other words, it goes through a sentencing process that goes beyond reweighing what the jury weighed.

Mr. Bjurberg: Yes, and that's why I wanted to get away from the term, reweighing.

I mean, that implies that it's just a new... or, repeating the process, and I think our statute... our... well, it does say that it's a independent weighing of the aggravating and mitigating circumstances at the appellate level, plus we have proportionality review that was alluded to by Ms. Friedman.

Thank you.

The State of--

Unknown Speaker: Let me just ask one last question.

You made reference to this being a compromise verdict, and I didn't quite understand that, because I thought the jury just had two choices, either life without parole, or death.

Mr. Bjurberg: --Compromise in the sense that, Justice Stevens, it took them approximately 25 minutes to reach a sentencing decision in this.

Perhaps, and I'll admit that I'm speculating on this point, that once they returned the guilty verdict, then the compromise, if you will, was to return the life-without-parole recommendation, and in that sense a compromise, but you're correct, there are only two possible sentences, yes.

The State of Alabama would ask this Court to affirm the Alabama supreme court and uphold Louise Harris' death sentence.

Unknown Speaker: Thank you, Mr. Bjurberg.

Ms. Friedman, you have 2 minutes remaining.

Rebuttal of Ruth Friedman

Mr. Friedman: To respond to the earlier questions about appellate review, the Alabama supreme court does not see itself as having the authority to impose a sentence de novo, or to do that kind of reweighing analysis whenever independent of some kind on error below.

If there is an error below, the appellate court always sends the case back, so it is not a de novo sentencing that the Alabama courts have ever seen themselves authorized to perform.

Unknown Speaker: The opinion does say, after an independent weighing of the aggravating and mitigating circumstances.

You say that's not an independent decision?

Mr. Friedman: It's not a de novo review of the evidence below.

If there is some kind of error below, the appellate courts in Alabama do not see themselves as authorized to fix that.

What they do is, they send the case back if there is some problem below.

To address also Justice O'Connor's point earlier about the Coral case and the treatment regarding how much weight was given to the jury life-without-parole verdict, the same judge not only gave it different weight, but treated it as a mitigating factor in one case and not a mitigating factor in another.

So that question of, from county to county, it's so irregular that even the same judge is treating the verdict in a different way, and I think one thing we can tell, certainly from the practice in history of override in Alabama, is that Alabama defendants certainly are not benefiting from it.

95 percent of those overrides are jury life-without-parole verdicts overridden into death verdicts.

What Alabama has is an otherwise constitutional process that is operating in an arbitrary manner, and all the Alabama court needs to do is state a rule and fix that arbitrary problem.

If there are no further questions--

Chief Justice Rehnquist: Thank you, Ms. Friedman.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.